494 U.S. 1
Argued Nov. 1, 1989.
Decided Feb. 21, 1990.
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 50 L.Ed. 499.
Because pre-existing federal law failed to deal adequately with the
national problem of shrinking rail trackage, Congress enacted the National
Trails System Act Amendments of 1983 (Amendments) to the National Trails
System Act (Trails Act), which authorize the Interstate Commerce
Commission (ICC or Commission) to preserve for possible future railroad
use rights-of-way not currently in service and to allow interim use of the
land as recreational trails. Section
8(d) of this so-called "rails-to-trails" statute provides that a
railroad wishing to cease operations along a particular route may
negotiate with a State, municipality, or private group prepared to assume
financial and managerial responsibility for the right-of-way.
If the parties reach agreement, the land may, subject to ICC-imposed
terms and conditions, be transferred to the trail operator for interim
trail use notwithstanding whatever reversionary interests may exist in the
property under state law. If
no agreement is reached, the railroad may abandon the line entirely,
thereby allowing the property to revert to abutting landowners if the
terms of applicable easements and state law provide for such reversion.
After Vermont Railway, Inc., stopped using a right-of-way adjacent
to petitioners' land in Vermont, petitioners brought a state-court, quiet
title action, alleging that the railroad's easement had been abandoned and
thus extinguished, and that the right-of-way had therefore reverted to
them under state law. Holding
that it lacked jurisdiction because the ICC had not authorized
2 abandonment of the route and therefore still exercised exclusive
jurisdiction over it, the court dismissed the action, and the State
Supreme Court affirmed. Petitioners then sought a certificate of abandonment
from the ICC, but the Commission granted a petition to permit the railroad
to discontinue rail service and transfer the right-of-way to the city of
Burlington for interim trail use under § 8(d). The Federal Court of
Appeals affirmed, rejecting petitioners' contentions that § 8(d) is
unconstitutional on its face because it takes private property without
just compensation in violation of the Fifth Amendment and because it is
not a valid exercise of Congress' Commerce Clause power.
Even if the rails-to-trails statute gives rise to a taking, compensation
is available under the Tucker Act, and the requirements of the Fifth
Amendment are therefore satisfied.
Since the Amendments and their legislative history do not mention
the Tucker Act -- which provides Claims Court jurisdiction over claims
against the Government to recover damages founded on, inter alia, the
Constitution -- the Amendments do not exhibit the type of
"unambiguous intention" to withdraw the Tucker Act remedy that
is necessary to preclude a claim under that Act.
See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019, 104 S.Ct.
2862, 2881, 81 L.Ed.2d 815. Section 101 of the Amendments -- which provides that
"authority to ... make payments ... under this Act shall be effective
only to such extent or in such amounts as are provided in advance in
appropriation Acts" -- does not, as petitioners claim, indirectly
manifest the necessary intent by rendering "unauthorized," as
not approved by Congress for payment in advance, any rail-to-trail
conversion that could result in Claims Court litigation.
Since § 8(d) speaks in capacious terms of interim use of any right-of-way,
it clearly authorizes conversions giving rise to just compensation claims
and therefore does not support petitioners' contention. That there is no
explicit promise to pay for any takings is irrelevant, since the Tucker
Act constitutes an implied promise to pay just compensation which
individual laws need not reiterate.
Moreover, § 101 speaks only to payments under the Amendments
themselves and not to takings claims that "arise" under the
Fifth Amendment and for which payments are made "under" the
Tucker Act from the separately appropriated Judgment Fund.
Nor do statements in the legislative history indicating Congress'
desire that the Amendments operate at "low cost" demonstrate an
unambiguous intent to withdraw the Tucker Act remedy, since a generalized
desire to protect the public fisc is insufficient for that purpose, see,
e.g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 127-128, 95
S.Ct. 335, 350-351, 42 L.Ed.2d 320, and since the statements might simply
reflect Congress' rejection of a more ambitious program of federally owned
and managed trails. Because
petitioners' failure to make use of the available Tucker Act remedy
3 renders their takings challenge to the ICC's order premature, there
is no need to determine whether a taking occurred.
The Amendments are a valid exercise of Congress' Commerce Clause power.
The stated congressional purposes -- (1) to encourage the
development of additional recreational trails on an interim basis and (2)
to preserve established railroad rights-of-way for future reactivation of
rail service -- are valid objectives to which the Amendments are
reasonably adapted. Even
if petitioners were correct that the rail banking purpose is a sham
concealing a true purpose of preventing reversion of rights-of-way to
property owners after abandonment, the Amendments would still be valid
because they are reasonably adapted to the goal of encouraging the
development of additional trails. There is no requirement that a law serve
more than one legitimate purpose. Moreover, this Court is not free under
the applicable rational-basis standard of review to hold the Amendments
invalid simply because the rail banking purpose might be advanced more
completely by measures more Draconian than § 8(d) -- such as a program of
mandatory conversions or a prohibition of all abandonments.
The long history of congressional attempts to address the problem
of rail abandonments provides sufficient reason to defer to the
legislative judgment that § 8(d) is an appropriate answer.
Furthermore, in light of that history, Congress was entitled to
make the judgment that every line is a potentially valuable national asset
meriting preservation even if no future rail use for it is currently
foreseeable, so that the fact that the ICC must certify that public
convenience and necessity permit abandonment before granting an interim
trail use permit does not indicate that the statute fails to promote its
purpose of preserving rail corridors.
F.2d 145 (CA2 1988), affirmed.
BRENNAN, J., delivered the opinion for
a unanimous Court. O'CONNOR,
J., filed a concurring opinion, in which SCALIA and KENNEDY, JJ., joined,
post, p. 926.
M. Berger argued the cause for petitioners.
With him on the briefs were Clarke A. Gravel, Richard E. Davis, and
T. Christopher Greene.
J. Martin argued the cause for the federal respondents. With him on the brief were Acting Solicitor General Bryson,
Acting Assistant Attorney General Carr, Deputy Solicitor General Wallace,
Anne S. Almy, James E. Brookshire, Robert S. Burk, and Ellen D. Hanson.
John K. Dunleavy, Assistant Attorney General, argued the cause for
4 respondents State of Vermont et al.
With him on the brief were Jeffrey L. Amestoy, Attorney General,
and John T. Leddy.*
Briefs of amici curiae urging reversal were filed for the American Farm
Bureau Federation et al. by John J. Rademacher and Richard L. Krause; for
the Missouri Farm Bureau Federation, et al by Ron McMillin and Lori J.
Levine; for the National Association of Realtors by Ralph W. Holman; and
for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and Edward J.
of amici curiae urging affirmance were filed for Montgomery County,
Maryland, by Fritz R. Kahn and Clyde H. Sorrell; for the Iowa Association
of County Conservation Boards et al. by Charles H. Moutange; for the
National Association of Counties et al. by Benna Ruth Solomon, Joyce
Holmes Benjamin, Beate Bloch, James L. Quarles III, and Jerold S. Kayden;
and for the Rails‑to‑ Trails Conservancy et al. by Robert
Brager, David M. Friedland, and David Burwell.
of amici curiae were filed for the State of California et al. by John K.
Van de Kamp, Attorney General of California, N. Gregory Taylor and
Theodora P. Berger, Assistant Attorneys General, Dennis M. Eagan, Craig C.
Thompson, and Terry T. Fujimoto, Deputy Attorneys General, and by the
Attorneys General for their respective States as follows: Robert A.
Butterworth of Florida, Thomas J. Miller of Iowa, Frederkck J. Cowan of
Kentucky, Frank J. Kelley of Michigan, Brian McKay of Nevada, Stephen E.
Merrill of New Hampshire, Nicholas Spaeth of North Dakota, Anthony J.
Celebrezze, Jr., of Ohio, Ernest D. Preate, Jr., of Pennsylvania, Roger A.
Tellinghuisen of South Dakota, R. Paul Van Dam of Utah, and Charles G.
Brown of West Virginia; and for the National Association of Reversionary
Property Owners by Daryl A. Deutsch.
BRENNAN delivered the opinion of the Court.
question presented is the constitutionality of a federal "rails-to-trails"
statute under which unused railroad rights-of-way are converted into
recreational trails notwithstanding whatever reversionary property
interests may exist under state law.
Petitioners contend that the statute violates both the Fifth
Amendment Takings Clause and the Commerce Clause, Art. I, § 8. We find it
unnecessary to evaluate the merits of the takings claim because we hold
that even if the rails-to-trails statute gives rise to a taking,
compensation is available to petitioners under the Tucker Act, 28 U.S.C.
 § 1491(a)(1) (1982 ed.), and the requirements of the Fifth
Amendment are satisfied. We
also hold that the statute is a valid exercise of congressional power
under the Commerce Clause.
statute at issue in this case, the National Trails System Act Amendments
of 1983 (Amendments), Pub.L. 98-11, 97 Stat. 48, to the National Trails
System Act (Trails Act), Pub.L. 90-543, 82 Stat. 919 (codified, as
amended, at 16 U.S.C. § 1241 et seq.), is the culmination of
congressional efforts to preserve shrinking rail trackage by converting
unused rights-of-way to recreational trails. [FN1]
In 1920, the Nation's railway system reached its peak of 272,000
miles; today only about 141,000 miles are in use, and experts
predict that 3,000 miles will be abandoned every year through the end of
this century. [FN2] Concerned
about the loss of trackage, Congress included in the Railroad
Revitalization and Regulatory Reform Act of 1976 (4-R Act), Pub.L. 94-210,
90 Stat. 144, as amended, 49 U.S.C. § 10906 (1982 ed.), several
provisions aimed at promoting the conversion of abandoned [FN3] lines
6 to trails. Section
809(a) of the 4-R Act required the Secretary of Transportation to prepare
a report on alternative uses for abandoned railroad rights-of-way.
Section 809(b) authorized the Secretary of the Interior to
encourage conversion of abandoned rights-of-way to recreational and
conservational uses through financial, educational, and technical
assistance to local, state, and federal agencies.
See note following 49 U.S.C. § 10906 (1982 ed.).
Section 809(c) authorized the Interstate Commerce Commission (ICC
or Commission) to delay the disposition of rail property for up to 180
days after the effective date of an order permitting abandonment, unless
the property had first been offered for sale on reasonable terms for
public purposes including recreational use.
See 49 U.S.C. § 10906 (1982 ed.).
FN1. Many nature
trails are operated directly by the Federal Government pursuant to the
Trails Act, in which Congress reserved to itself the right to designate
scenic and historic trails and delegated to the Secretary of the Interior
and the Secretary of Agriculture authority to designate recreational
trails and to develop and administer the entire trails system.
See 16 U.S.C. §§ 1242-1246.
Section 7(e) of the Trails Act, 16 U.S.C. § 1246(e), provides that
the land necessary for a designated scenic or historic trail may be
acquired by state or local governments or by federal authorities, either
through cooperative agreements with landowners or by purchase.
In the event that all voluntary means for acquiring the property
fail, the appropriate Secretary is given limited power to obtain private
lands through condemnation proceedings.
See 16 U.S.C. § 1246(g).
See authorities cited in Comment, Rails to Trails:
Converting America's Abandoned Railroads Into Nature Trails, 22
Akron L.Rev. 645, (1989); see
also 102 ICC Ann.Rep. 44-45 (1988); 101
ICC Ann.Rep. 37-38 (1987).
FN3. There is an important distinction in the Interstate Commerce
Act between "abandonment" of a rail line and
"discontinuance" of service. See 49 U.S.C. § 10903 (1982 ed.).
Once a carrier "abandons" a rail line pursuant to
authority granted by the Interstate Commerce Commission, the line is no
longer part of the national transportation system, and although the
Commission is empowered to impose conditions on abandonments, see, e.g.,
49 U.S.C. §§ 10905(f)(4), 10906 (1982 ed.), as a general proposition ICC
jurisdiction terminates. See
Hayfield Northern R. Co. v. Chicago & North Western Transp. Co., 467
U.S. 622, 633-634, 104 S.Ct. 2610, 2617, 81 L.Ed.2d 527 (1984);
54 Fed.Reg. 8011-8012 (1989).
In contrast, "discontinuance" authority allows a railroad
to cease operating a line for an indefinite period while preserving the
rail corridor for possible reactivation of service in the future.
By 1983, Congress
recognized that these measures "ha[d] not been successful in
establishing a process through which railroad rights-of-way which are not
immediately necessary for active service can be utilized for trail
No. 98-28, p. 8 (1983) (H.R.Rep.);
S.Rep. No. 98-1, p. 9 (1983) (S.Rep.) (same), U.S.Code Cong. &
Admin.News 1983, pp. 112, 119. Congress enacted the Amendments to the
Trails Act, which authorize the ICC to preserve for possible future
railroad use rights-of-way not currently in service and to allow interim
use of the land as recreational trails. Section 8(d) provides that a
railroad wishing to cease operations along a particular route may
negotiate with a State, municipality, or private group that is prepared to
assume 7 financial and
managerial responsibility for the right-of-way. [FN4] If the parties reach agreement, the land may be transferred
to the trail operator for interim trail use, subject to ICC-imposed terms
and conditions; if no
agreement is reached, the railroad may abandon the line entirely and
liquidate its interest. [FN5]
FN4. Section 8(d), codified at 16 U.S.C. § 1247(d), provides:
"The Secretary of Transportation, the Chairman of the
Interstate Commerce Commission, and the Secretary of the Interior, in
administering the Railroad Revitalization and Regulatory Reform Act of
1976, shall encourage State and local agencies and private interests to
establish appropriate trails using the provisions of such programs.
Consistent with the purposes of that Act, and in furtherance of the
national policy to preserve established railroad rights-of-way for future
reactivation of rail service, to protect rail transportation corridors,
and to encourage energy efficient transportation use, in the case of
interim use of any established railroad rights-of-way pursuant to
donation, transfer, lease, sale, or otherwise in a manner consistent with
this chapter [the Trails Act], if such interim use is subject to
restoration or reconstruction for railroad purposes, such interim use
shall not be treated, for purposes of any law or rule of law, as an
abandonment of the use of such rights-of-way for railroad purposes. If a
State, political subdivision, or qualified private organization is
prepared to assume full responsibility for management of such
rights-of-way and for any legal liability arising out of such transfer or
use, and for the payment of any and all taxes that may be levied or
assessed against such rights-of-way, then the Commission shall impose such
terms and conditions as a requirement of any transfer or conveyance for
interim use in a manner consistent with this chapter, and shall not permit
abandonment or discontinuance inconsistent or disruptive of such
FN5. Under implementing regulations promulgated by the ICC, a
railroad may apply to the ICC for either a Certificate of Interim Trail
Use or Abandonment (CITU) or, in a proceeding involving the exemption of a
route from ICC regulation, a Notice of Interim Trail Use or Abandonment (NITU).
See Rail Abandonments -- Use of Rights-of-Way as Trails, 2 I.C.C.2d
591, 628 (1986); 49 CFR §
1152.29 (1988). A CITU
or NITU provides a 180-day period during which the railroad may
discontinue service, cancel tariffs, and salvage track and other
equipment, and also negotiate a voluntary agreement for interim trail use
with a qualified trail operator.
If agreement is reached, interim trail use is thereby authorized.
If not, the CITU or NITU automatically converts into an effective
certificate or notice of abandonment.
Because the ICC had not yet promulgated its final regulations
implementing § 8(d) at the time of its decision in the instant case, the
Commission did not issue a CITU or NITU.
8 Section 8(d) of the
amended Trails Act provides that interim trail use "shall not be
treated, for any purposes of any law or rule of law, as an abandonment of
the use of such rights-of-way for railroad purposes."
16 U.S.C. § 1247(d). This
language gives rise to a takings question in the typical rails-to-trails
case because many railroads do not own their rights-of-way outright but
rather hold them under easements or similar property interests.
While the terms of these easements and applicable state law vary,
frequently the easements provide that the property reverts to the abutting
landowner upon abandonment of rail operations.
State law generally governs the disposition of reversionary
interests, subject of course to the ICC's "exclusive and
plenary" jurisdiction to regulate abandonments, Chicago & North
Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 321, 101
S.Ct. 1124, 1132, 67 L.Ed.2d 258 (1981), and to impose conditions
affecting postabandonment use of the property.
See Hayfield Northern R. Co. v. Chicago & North Western Transp.
Co., 467 U.S. 622, 633, 104 S.Ct. 2610, 2617, 81 L.Ed.2d 527 (1984).
By deeming interim trail use to be like discontinuance rather than
abandonment, see n. 3, supra, Congress prevented property interests from
reverting under state law:
finding of this amendment is that interim use of a railroad right-of-way
for trail use, when the route itself remains intact for future railroad
purposes, shall not constitute an abandonment of such rights-of-way for
railroad purposes. This
finding alone should eliminate many of the problems with this program.
The concept of attempting to establish trails only after the formal
abandonment of a railroad right-of-way is self-defeating; once a right-of-way is abandoned for railroad purposes there
may be nothing left for trail use.
This amendment would ensure that potential interim trail use will
be considered prior to abandonment."
H.R.Rep., at 8-9, U.S.Code Cong. & Admin.News 1983, pp. 119,
9 See S.Rep., at 9 (same).
The primary issue in this case is whether Congress has violated the
Fifth Amendment by precluding reversion of state property interests.
Petitioners claim a reversionary interest in a railroad right-of-way
adjacent to their land in Vermont.
In 1962, the State of Vermont acquired the Rutland Railway
Corporation's interest in the right-of-way and then leased the right-of-way
to Vermont Railway, Inc. Vermont
Railway stopped using the route more than a decade ago and has since
removed all railroad equipment, including switches, bridges, and track,
from the portion of the right-of-way claimed by petitioners.
In 1981, petitioners brought a quiet title action in the Superior
Court of Chittenden County, alleging that the easement had been abandoned
and was thus extinguished, and that the right-of-way had reverted to them
by operation of state property law.
In August 1983, the Superior Court dismissed the action, holding
that it lacked jurisdiction because the ICC had not authorized abandonment
of the route and therefore still exercised exclusive jurisdiction over it.
The Vermont Supreme Court affirmed.
Trustees of Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151
Petitioners then sought a certificate of abandonment of the
rail line from the ICC. The
State of Vermont intervened, claiming title in fee simple to the right-of-way
and arguing in the alternative that, even if the State's interest were an
easement, the land could not revert while it was still being used for a
public purpose. Vermont
Railway and the State then petitioned the ICC to permit the railroad to
discontinue rail service and transfer the right-of-way to the city of
Burlington for interim use as a public trail under § 8(d) of the Trails
Act. By a Notice of
Exemption decided January 2, 1986, the ICC allowed the railroad to
discontinue service and approved the agreement between the State and the
city for interim trail use. See
51 Fed.Reg. 454-455. On February 4, 1986, the 10 ICC Chairman denied petitioners' application for a stay pending
administrative review, [FN6] and the decision became effective on February
5, 1986. Petitioners'
motion for reconsideration and/or clarification was denied on July 17,
1987. The Commission
noted that "[i]nevitably, interim trail use will conflict with the
reversionary rights of adjacent land owners, but that is the very purpose
of the Trails Act." State
of Vermont & Vermont Railway, Inc. -- Discontinuance of Service
Exemption in Chittenden County, 3 I.C.C.2d 903, 908.
FN6. State of Vermont and
Vermont Railway, Inc. -- Discontinuance of Service Exemption in Chittenden
County, Docket No. AB-265 (Sub-No. 1X).
Petitioners sought review of the ICC's order in the Court of
Appeals for the Second Circuit, arguing that § 8(d) of the Trails Act is
unconstitutional on its face because it takes private property without
just compensation and because it is not a valid exercise of Congress'
Commerce Clause power. The
Court of Appeals rejected both arguments.
853 F.2d 145 (1988). It
reasoned that the ICC has "plenary and exclusive authority" over
abandonments, id., at 151, and that federal law must be considered in
determining the property right held by petitioners.
"For as long as it determines that the land will serve a
'railroad purpose,' the ICC retains jurisdiction over railroad rights-of-way;
it does not matter whether that purpose is immediate or in the
Because the court believed that no reversionary interest could vest
until the ICC determined that abandonment was appropriate, the court
concluded that the Trails Act did not result in a taking.
Next, the court found that the Trails Act was reasonably adapted to
two legitimate congressional purposes under the Commerce Clause:
"preserving rail corridors for future railroad use" and
"permitting public recreational use of trails." Id., at 150. The Court of Appeals therefore dismissed petitioners'
Commerce Clause challenge. We
granted certiorari. 490 U.S.
1034, 109 S.Ct. 1929, 104 L.Ed.2d 401 (1989).
The Fifth Amendment provides in relevant part that "private
property [shall not] be taken for public use, without just
Amendment "does not prohibit the taking of private property, but
instead places a condition on the exercise of that power."
First English Evangelical Lutheran Church of Glendale v. County of
Los Angeles, 482 U.S. 304, 314, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250
(1987). It is designed "not to limit the governmental
interference with property rights per se, but rather to secure
compensation in the event of otherwise proper interference amounting to a
taking." Id., at 315,
107 S.Ct., at 2385-2386 (emphasis in original). Furthermore, the Fifth
Amendment does not require that just compensation be paid in advance of or
even contemporaneously with the taking.
See Williamson County Regional Planning Comm'n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126
(1985). All that is
required is the existence of a " 'reasonable, certain and adequate
provision for obtaining compensation' " at the time of the taking.
Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-125, 95
S.Ct. 335, 349, 42 L.Ed.2d 320 (1974) (quoting Cherokee Nation v. Southern
Kansas R. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890)).
"If the government has provided an adequate process for
obtaining compensation, and if resort to that process 'yield[s] just
compensation,' then the property owner 'has no claim against the
Government' for a taking." Williamson
County Regional Planning Comm'n, supra, 473 U.S., at 194-195, 105 S.Ct.,
at 3121 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018, n.
21, 104 S.Ct. 2862, 2881, n. 21, 81 L.Ed.2d 815 (1984)).
this reason, "taking claims against the Federal Government are
premature until the property owner has availed itself of the process
provided by the Tucker Act." Williamson
County Regional Planning Comm'n, supra, at 195, 105 S.Ct., at 3121; see also United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 127-128, 106 S.Ct. 455, 459-460, 88 L.Ed.2d 419 (1985);
Monsanto, supra, 467 U.S., at 1016, 104 S.Ct., at 2879;
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438
U.S. 59, 94, n. 39, 98 S.Ct. 2620, 2641, n. 39, 57 L.Ed.2d 595 (1978).
The Tucker Act provides jurisdiction
12 in the United States Claims Court for any claim against the Federal
Government to recover damages founded on the Constitution, a statute, a
regulation, or an express or implied‑in‑fact contract.
See 28 U.S.C. § 1491(a)(1) (1982 ed.);
see also § 1346(a)(2) (Little Tucker Act, which creates concurrent
jurisdiction in the district courts for such claims not exceeding $10,000
in amount). "If there is
a taking, the claim is 'founded upon the Constitution' and within the
jurisdiction of the [Claims Court] to hear and determine."
United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068, 90
L.Ed. 1206 (1946).
The critical question in this case, therefore, is whether a Tucker
Act remedy is available for claims arising out of takings pursuant to the
Amendments. The proper
inquiry is not whether the statute "expresses an affirmative showing
of congressional intent to permit recourse to a Tucker Act remedy,"
but rather "whether Congress has in the [statute] withdrawn the
Tucker Act grant of jurisdiction to the [Claims Court] to hear a suit
involving the [statute] 'founded ... upon the Constitution.' "
Regional Rail Reorganization Act Cases, supra, 419 U.S., at 126, 95
S.Ct., at 350 (emphasis in original).
Under this standard, we conclude that the Amendments did not
withdraw the Tucker Act remedy.
Congress did not exhibit the type of "unambiguous intention to
withdraw the Tucker Act remedy," Monsanto, supra, 467 U.S., at 1019,
104 S.Ct., at 2881, that is necessary to preclude a Tucker Act claim.
See Glosemeyer v. Missouri-Kansas-Texas R. Co., 685 F.Supp. 1108,
1120-1121 (E.D.Mo.1988), aff'd, 879 F.2d 316, 324-325 (CA8 1989).
Neither the statute nor its legislative history mentions the Tucker
Act. As indirect
evidence of Congress' intent to prevent recourse to the Tucker Act,
petitioners point to § 101 of the Amendments which, although it was not
codified into law, provides in relevant part that:
any other provision of this Act, authority to enter into contracts, and to
make payments, under this Act shall be effective only to such extent or in
such amounts as are provided in advance in appropriationActs." 
EQP:0041 97 Stat. 42, note following 16 U.S.C. § 1249.
Petitioners contend that this section limits the ICC's authority
for conversions to those not requiring the expenditure of any funds and to
those others for which funds had been appropriated in advance.
Thus, any conversion that could result in Claims Court litigation
was not authorized by Congress, since payment for such an acquisition
would not have been approved by Congress in advance.
Petitioners insist that such unauthorized Government actions cannot
create Tucker Act liability, citing Hooe v. United States, 218 U.S. 322,
335, 31 S.Ct. 85, 89, 54 L.Ed. 1055 (1910), and Regional Rail
Reorganization Act Cases, supra, 419 U.S., at 127, n. 16, 95 S.Ct., at
350, n. 16.
We need not decide what types of official authorization, if
any, are necessary to create federal liability under the Fifth Amendment,
because we find that rail-to-trail conversions giving rise to just
compensation claims are clearly authorized by § 8(d).
That section speaks in capacious terms of "interim use of any
established railroad rights-of-way" (emphasis added) and does not
support petitioners' proposed distinction between conversions that might
result in a taking and those that do not.
Although Congress did not explicitly promise to pay for any
takings, we have always assumed that the Tucker Act is an "implie[d]
promis[e]" to pay just compensation which individual laws need not
reiterate. Yearsley v. W.A.
Ross Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413, 414, 84 L.Ed. 554
argument that specific congressional authorization is required for those
conversions that might result in takings is a thinly veiled attempt to
circumvent the established method for determining whether Tucker Act
relief is available for claims arising out of takings pursuant to a
federal statute. We
reaffirm that a Tucker Act remedy exists unless there are unambiguous
indications to the contrary.
Section 101, moreover, speaks only to appropriations under the
Amendments themselves and not to relief available 14 under the Tucker Act, as evidenced by § 101's opening clause --
"[n]otwithstanding any other provision of this Act" (emphasis
added) -- which refers to the 1983 Amendments.
The section means simply that payments made pursuant to the
Amendments, such as funding for scenic trails, markers, and similar
purposes, see Amendments § 209(5)(c), 97 Stat. 49 (codified at 16 U.S.C.
§ 1249(c)(2)) (authorizing appropriations for the development and
administration of certain National Scenic and National Historic Trails),
are effective only "in such amounts as are provided in advance in
appropriation Acts," a concept that mirrors Art. I, § 9, of the
Constitution ("No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law"). Payments for takings claims are not affected by this
language, because such claims "arise" under the Fifth Amendment,
see First English Evangelical Lutheran Church, 482 U.S., at 315-316, 107
S.Ct., at 2386. Payments
for takings would be made "under" the Tucker Act, not the Trails
Act, and would be drawn from the Judgment Fund, which is a separate
appropriated account, see 31 U.S.C. § 1304(a) (1982 ed.).
Section 101 does not manifest the type of clear and unmistakable
congressional intent necessary to withdraw Tucker Act coverage.
Petitioners next assert that Congress' desire that the Amendments
operate at "low cost," H.R.Rep., at 3, U.S.Code Cong. &
Admin.News 1983, p. 114, somehow indicates that Congress withdrew the
Tucker Act remedy. There
is no doubt that Congress meant to keep the costs of the Amendments to a
minimum. [FN7] This intent,
however, has little bearing on the Tucker Act question.
We 15 have previously
rejected the argument that a generalized desire to protect the public fisc
is sufficient to withdraw relief under the Tucker Act.
In the Regional Rail Reorganization Act Cases, we recognized that
the Rail Act established "[m]aximum" funding authorizations, 419
U.S., at 127-128, 95 S.Ct., at 350-351, but we nevertheless held that
those limits were not an unambiguous repeal of the Tucker Act remedy. We reasoned that the maximum limits might "support
the inference that Congress was so convinced that the huge sums provided
would surely equal or exceed the required constitutional minimum that it
never focused upon the possible need for a suit in the Court of
Claims." Id., at 128, 95
S.Ct., at 351. In
Monsanto, we stated that:
FN7. See H.R.Rep., at 2,
U.S.Code Cong. & Admin.News 1983, p. 113 (noting that the Committee
"eliminated most of the items which could require future Federal
at 3 (same); H.R.Rep., at 11,
U.S.Code Cong. & Admin.News 1983, p. 122 (reporting required funding
for the bill to be "insignificant");
129 Cong.Rec. 5219 (1983) (remarks of floor manager Rep. Seiberling)
("[T]he committee recommended a revised text which eliminated most of
the items which would require future Federal expenditures....
Additional recommendations reflect continuing efforts to encourage
the expansion of trail recreation opportunities across the Nation at a low
[the statute] did not address the liability of the Government to pay just
compensation should a taking occur.
Congress' failure specifically to mention or provide for recourse
against the Government may reflect a congressional belief that use of data
by [the Government] in the ways authorized by [the statute] effects no
Fifth Amendment taking or it may reflect Congress' assumption that the
general grant of jurisdiction under the Tucker Act would provide the
necessary remedy for any taking that may occur.
In any event, the failure cannot be construed to reflect an
unambiguous intention to withdraw the Tucker Act remedy."
467 U.S., at 1018-1019, 104 S.Ct., at 2881.
Similar logic applies
to the instant case. The
statements made in Congress during the passage of the Trails Act
Amendments might reflect merely the decision not to create a program of
direct federal purchase, [FN8] construction, and
16 maintenance of trails, and instead to allow state and local
governments and private groups to establish and manage trails.
The alternative chosen by Congress is less costly than a program of
direct federal trail acquisition because, under any view of takings law,
only some rail-to-trail conversions will amount to takings.
Some rights-of-way are held in fee simple. See National Wildlife Federation v. ICC, 271
U.S.App.D.C. 1, 10, 850 F.2d 694, 703 (1988).
Others are held as easements that do not even as a matter of state
law revert upon interim use as nature trails. [FN9]
In addition, under § 8(d) the Federal Government neither incurs
the costs of constructing and maintaining the trails nor assumes legal
liability for the transfer or use of the right-of-way.
In contrast, the costs of acquiring and administering national
scenic and national historic trails are borne directly by the Federal
Government. See n. 1,
supra. Thus, the "low cost" language might reflect
Congress' rejection of a more ambitious program of federally owned and
managed trails, rather than withdrawal of a Tucker Act remedy. The language does not amount to the "unambiguous
intention" required by our prior cases. [FN10]
FN8. We note that the ICC
has construed § 8(d) as not providing federal power to condemn railroad
rights-of-way for interim trail use. See Rail Abandonments, 2 I.C.C.2d, at
596-598; see also National
Wildlife Federation v. ICC, 271 U.S.App.D.C. 1, 4, n. 4, 6-9, 850 F.2d
694, 697, n. 4, 699-702 (1988); Connecticut
Trust for Historic Preservation v. ICC, 841 F.2d 479, 482-483 (CA2 1988);
Washington State Dept. of Game v. ICC, 829 F.2d 877, 879-882 (CA9
FN9. Some state
courts have held that trail use does not constitute abandonment of a right-of-way
for public travel so as to trigger reversionary rights. See State by Washington Wildlife Preservation, Inc. v.
State, 329 N.W.2d 543, 545-548 (Minn.), cert. denied, 463 U.S. 1209, 103
S.Ct. 3540, 77 L.Ed.2d 1390 (1983); Reiger
v. Penn Central Corp., No. 85-CA-11 (Ct.App. Greene County, Ohio, May 21,
Petitioners also claim that a floor statement by Senator Domenici that
"the Federal Government has acquired too much land from landowners
using condemnation procedures that in essence short changed the property
rights of the landowners," 129 Cong.Rec. 1607 (1983), means that
Tucker Act relief is unavailable.
We disagree. The
Senator spoke in the context of praising the statute for "encourag[ing]
cooperation" rather than resorting automatically to condemnation.
Ibid. As administered
by the ICC, the conversion process begins when a railroad voluntarily
seeks a CITU or NITU; it then
negotiates with a qualified trail operator to establish interim trail use.
The ICC does not set up trails on its own and has interpreted §
8(d) to exclude the type of condemnation power vested in the Secretaries
of the Interior and Agriculture by 16 U.S.C. § 1246(g).
See n. 8, supra. This limitation on ICC condemnation authority is not
relevant to the question whether compensation under the Tucker Act is
available for takings resulting from the conversions that do occur, and it
certainly is not an unambiguous sign that Congress meant to withdraw
Tucker Act relief.
17 In sum, petitioners' failure to make use of the available Tucker
Act remedy renders their takings challenge to the ICC's order premature.
We need not decide whether a taking occurred in this case.
Petitioners also contend that the
Amendments are not a valid exercise of congressional power under the
Commerce Clause, Art. I, § 8, because the true purpose of § 8(d) is to
prevent reversion of railroad rights-of-way to property owners after
abandonment and to create recreational trails, rather than to preserve
rail corridors for future railroad use.
We evaluate this claim under the traditional rationality standard
of review: we must defer to a
congressional finding that a regulated activity affects interstate
commerce "if there is any rational basis for such a finding,"
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S.
264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981), and we must ensure
only that the means selected by Congress are " 'reasonably adapted to
the end permitted by the Constitution.' " Ibid. (quoting Heart of Atlanta Motel, Inc.
v. United States, 379 U.S. 241, 262, 85 S.Ct. 348, 360, 13 L.Ed.2d 258
(1964)); see also Hodel v.
Indiana, 452 U.S. 314, 323-324, 101 S.Ct. 2376, 2382-2383, 69 L.Ed.2d 40
(1981). The Amendments
clearly pass muster.
Two congressional purposes are evident.
First, Congress intended to "encourage
the development of additional trails" and to "assist
recreation[al] users by providing opportunities for trail use on an
interim basis." H.R.Rep., at 8, 9;
S.Rep., at 9, 10 (same), U.S.Code Cong. & Admin.News 1983, p.
119; see also 16 U.S.C. §
1241(a) (Trails Act "promote[s] the preservation of, public access
to, travel within, and enjoyment and appreciation of the open-air, outdoor
18 areas and historic resources of the Nation").
Second, Congress intended "to preserve established railroad
rights-of-way for future reactivation of rail service, to protect rail
transportation corridors, and to encourage energy efficient transportation
use." H.R.Rep., at
8; S.Rep., at 9, U.S.Code Cong. & Admin.News 1983, p. 119;
see also 16 U.S.C. § 1247(d).
These are valid congressional objectives to which the Amendments
are reasonably adapted.
Petitioners contend that the Amendments do not reasonably
promote the latter purpose because the ICC cannot authorize trail use
until it has found that the right-of-way at issue is not necessary for
"present or future public convenience and necessity."
49 U.S.C. § 10903(a) (1982 ed.) (emphasis added).
The ICC has explained that:
Trails Act case, we will already have found that the public convenience
and necessity permit abandonment (or that regulatory approval is not
required under 49 U.S.C. [§] 10505)."
54 Fed.Reg. 8012, n. 3 (1989).
Thus, trail conversion is permitted only after the Commission
determines that rail service will not be not needed in the foreseeable
future. This, according
to petitioners, reveals that the rail banking rationale is a sham. If
Congress really wished to address the problem of shrinking trackage, it
would not have left conversions to voluntary agreements between railroads
and state and local agencies or private groups.
Rather, petitioners suggest, Congress would have created a
mandatory program administered directly by the ICC.
We note at the outset that even under petitioners' reading, the
Amendments would still be a valid exercise of congressional power under
the Commerce Clause because they are reasonably adapted to the goal of
encouraging the development of additional recreational trails. There is no requirement that a law serve more than one
legitimate purpose. Moreover,
we are not at liberty under the rational basis standard of review to hold
the Amendments invalid merely 19
because more Draconian measures -- such as a program of mandatory
conversions or a prohibition of all abandonments -- might advance more
completely the rail banking purpose.
The process of legislating often involves tradeoffs, compromises,
and imperfect solutions, and our ability to imagine ways of redesigning
the statute to advance one of Congress' ends does not render it
irrational. See, e.g.,
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469, 101 S.Ct. 715,
726, 66 L.Ed.2d 659 (1981). The
history of congressional attempts to address the problem of rail
abandonments, see supra, at 918‑919 provides sufficient reason to
defer to the legislative judgment that § 8(d) is an appropriate answer. Here, as in Virginia Surface Mining & Reclamation
Assn., Inc., "Congress considered the effectiveness of existing
legislation and concluded that additional measures were necessary."
452 U.S., at 283, 101 S.Ct., at 2364.
Petitioners' argument that § 8(d) does not serve the rail
banking purpose, moreover, is not well taken.
That the ICC must certify that public convenience and necessity
permit abandonment before granting a CITU or NITU does not indicate that
the statute fails to promote its purpose of preserving rail corridors.
Congress did not distinguish between short-term and long-term rail
banking, nor did it require that the Commission develop a specific
contingency plan for reactivation of a line before permitting conversion.
To the contrary, Congress apparently believed that every line is a
potentially valuable national asset that merits preservation even if no
future rail use for it is currently foreseeable.
Given the long tradition of congressional regulation of railroad
abandonments, see, e.g., Colorado v. United States, 271 U.S. 153, 46 S.Ct.
452, 70 L.Ed. 878 (1926), that is a judgment that Congress is entitled to
For the reasons stated, the judgment of the Court of Appeals
It is so ordered.
20 Justice O'CONNOR, with whom Justice SCALIA and Justice KENNEDY
Petitioners assert that the actions of the Interstate Commerce
Commission (ICC or Commission) prevent them from enjoying property rights
secured by Vermont law and thereby have effected a compensable taking.
The Court of Appeals for the Second Circuit determined that, no
matter what Vermont law might provide, the ICC's actions forestalled
petitioners from possessing the asserted reversionary interest, and thus
that no takings claim could arise.
Today the Court affirms the Second Circuit's judgment on quite
different grounds. I
join the Court's opinion, but write separately to express my view that
state law determines what property interest petitioners possess and that
traditional takings doctrine will determine whether the Government must
compensate petitioners for the burden imposed on any property interest
As the Court acknowledges, ante, at 920, 923-924, state law
creates and defines the scope of the reversionary or other real property
interests affected by the ICC's actions pursuant to § 208 of the National
Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d).
In determining whether a taking has occurred, "we are mindful
of the basic axiom that '[p]roperty interests ... are not created by the
they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law.'
" Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 1001, 104 S.Ct. 2862, 2872, 81 L.Ed.2d 815
(1984), quoting Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.
155, 161, 101 S.Ct. 446, 451, 66 L.Ed.2d 358 (1980) (internal quotation
original federal grants of railway easements may influence certain
disputes over interests in land, see Great Northern R. Co. v. United
States, 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836 (1942);
Idaho v. Oregon Short Line R. Co., 617 F.Supp. 207 (Idaho 1985), no
such federal role is present in this case.
Rather, the parties sharply dispute what interest, according to
Vermont law, the State of
21 Vermont acquired from the Rutland Railway Corporation and,
correspondingly, whether petitioners possess the property interest that
they claim has been taken. See
Brief for Petitioners 15, and n. 14;
Brief for Respondents State of Vermont et al. 22-25;
Reply Brief for Petitioners 2-4. Similar reference to state law has
guided other courts seeking to determine whether a railway right of way
lapsed upon the conversion to trail use. Compare State by Washington
Wildlife Preservation, Inc. v. State, 329 N.W.2d 543, 545-548 (Minn.)
(trail use within original interest, thus reversionary rights have not
matured), cert. denied, 463 U.S. 1209, 103 S.Ct. 3540, 77 L.Ed.2d 1390
(1983), with Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986)
(change in use would give effect to reversionary interests); McKinley v.
Waterloo R. Co., 368 N.W.2d 131, 133-136 (Iowa 1985) (lack of railway use
triggered period leading to reversion); Schnabel v. County of DuPage, 101 Ill.App.3d 553, 57 Ill.Dec.
121, 428 N.E.2d 671 (1981) (easement lapsed).
Determining what interest petitioners would have enjoyed under
Vermont law, in the absence of the ICC's recent actions, will establish
whether petitioners possess the predicate property interest that must
underlie any takings claim. See Ruckelshaus v. Monsanto Co., supra, 467 U.S., at 1001-1004,
104 S.Ct., at 2871-2874. We
do not attempt to resolve that issue.
It is also clear that the Interstate Commerce Act, and the
ICC's actions pursuant to it, pre-empt the operation and effect of certain
state laws that "conflict with or interfere with federal authority
over the same activity." Chicago
& North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S.
311, 319, 101 S.Ct. 1124, 1131, 67 L.Ed.2d 258 (1981);
see id., at 318-319, 101 S.Ct., at 1131.
States may not impose obligations upon carriers at odds with those
governed through the ICC's "exclusive" and "plenary
authority to regulate ... rail carriers' cessations of service on their
lines." Id., at 323, 101
S.Ct., at 1133; see id., at
324-327, 101 S.Ct., at 1133-1135.
A State may again exercise its regulatory powers once the ICC
authorizes a carrier's abandonment of service, and, thus, unless the
Commission attaches postabandonment conditions to the abandonment
certificate, 22 "brings
[the Commission's] regulatory mission to an end." Hayfield Northern
R. Co. v. Chicago & North Western Transp. Co., 467 U.S. 622, 633, 104
S.Ct. 2610, 2617, 81 L.Ed.2d 527 (1984).
As the Vermont Supreme Court recognized, state courts cannot
enforce or give effect to asserted reversionary interests when enforcement
would interfere with the Commission's administration of the Interstate
Commerce Act. See Trustees of Diocese of Vermont v. State, 145 Vt.
510, 496 A.2d 151 (1985). These
results are simply routine and well-established consequences of the
Supremacy Clause, U.S. Const., Art. VI, cl. 2.
The scope of the Commission's authority to regulate
abandonments, thereby delimiting the ambit of federal power, is an issue
quite distinct from whether the Commission's exercise of power over
matters within its jurisdiction effected a taking of petitioners'
property. Cf. Kaiser
Aetna v. United States, 444 U.S. 164, 174, 100 S.Ct. 383, 390, 62 L.Ed.2d
332 (1979) ("[T]here is no question but that Congress could assure
the public a free right of access.... Whether a statute or regulation that went so far amounted to
a 'taking,' however, is an entirely separate question").
Although the Commission's actions may pre-empt the operation and
effect of certain state laws, those actions do not displace state law as
the traditional source of the real property interests.
See Ruckelshaus v. Monsanto Co., supra, 467 U.S., at 1003-1004,
1012, 104 S.Ct., at 2873-2874, 2877 (state law creates property right in
trade secrets for purposes of Fifth Amendment, and regulatory regime does
not pre-empt state property law).
The Commission's actions may delay property owners' enjoyment of
their reversionary interests, but that delay burdens and defeats the
property interest rather than suspends or defers the vesting of those
property rights. See
National Wildlife Federation v. ICC, 271 U.S.App.D.C. 1, 11-12, and n. 16,
850 F.2d 694, 704-705, and n. 16 (1988). Any other conclusion would
convert the ICC's power to pre-empt conflicting state regulation of
interstate commerce into the power to pre-empt the rights guaranteed by
state property law, a result incompatible with the Fifth Amendment.
See Ruckelshaus 23 v.
Monsanto Co., 467 U.S., at 1012, 104 S.Ct., at 2878 ("If Congress can
'pre-empt' state property law in the manner advocated by EPA, then the
Taking Clause has lost all vitality.
[A] sovereign, 'by ipse dixit, may not transform private property
into public property without compensation....
This is the very kind of thing that the Taking Clause of the Fifth
Amendment was meant to prevent' "), quoting Webb's Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S., at 164, 101 S.Ct., at 452.
The Court of Appeals for the Second Circuit adopted just this
unjustified interpretation of the effect of the ICC's exercise of federal
power. The court
concluded that even if petitioners held the reversionary interest they
claim, no taking occurred because "no reversionary interest can or
would vest" until the ICC determines that abandonment is appropriate.
See 853 F.2d 145, 151 (1988).
This view conflates the scope of the ICC's power with the existence
of a compensable taking and threatens to read the Just Compensation Clause
out of the Constitution. The
ICC may possess the power to postpone enjoyment of reversionary interests,
but the Fifth Amendment and well-established doctrine indicate that in
certain circumstances the Government must compensate owners of those
property interests when it exercises that power.
See First English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 314-315, 107 S.Ct. 2378, 2385-2386, 96
L.Ed.2d 250 (1987) (The Taking Clause "does not prohibit the taking
of private property, but instead places a condition on the exercise of
that power," and the Clause "is designed not to limit the
governmental interference with property rights per se, but rather to
secure compensation in the event of otherwise proper interference
amounting to a taking"). Nothing
in the Court's opinion disavows these principles.
The Court's conclusion that § 8(d) authorizes rails-to-trails
conversions that amount to takings, ante, at 922-923, and its conclusion
that "under any view of takings law, only some rails-to-trail
conversions will amount to takings," ante, at 924, are inconsistent
with the Second Circuit's view.
Indeed, if the Second Circuit's
24 approach were adopted, discussion of the availability of the Tucker
Act remedy would be unnecessary.
Even the federal respondents acknowledge that the existence of a
taking will rest upon the nature of the state-created property interest
that petitioners would have enjoyed absent the federal action and upon the
extent that the federal action burdened that interest.
See Brief for Federal Respondents 23-24.
Well-established principles will govern analysis of whether
the burden the ICC's actions impose upon state-defined real property
interests amounts to a compensable taking.
We recently concluded in Nollan v. California Coastal Comm'n, 483
U.S. 825, 831-832, 107 S.Ct. 3141, 3145, 97 L.Ed.2d 677 (1987), that a
taking would occur if the Government appropriated a public easement. See
also Kaiser Aetna, supra, 444 U.S., at 179-180, 100 S.Ct., at 393 ("[T]he
'right to exclude,' so universally held to be a fundamental element of the
property right, falls within this category of interests that the
Government cannot take without compensation") (footnote omitted).
In such a case, a "permanent physical occupation" of the
underlying property "has occurred ... where individuals are given a
permanent and continuous right to pass to and fro, so that the real
property may continuously be traversed, even though no particular
individual is permitted to station himself permanently upon the
supra, 483 U.S., at 832, 107 S.Ct., at 3146;
see also, Kaiser Aetna, supra, 444 U.S., at 180, 100 S.Ct., at 393
("[E]ven if the Government physically invades only an easement in
property, it must nonetheless pay just compensation").
The Government's appropriation of other, lesser servitudes may also
impose a burden requiring payment of just compensation. See United States
v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946);
Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S.
327, 43 S.Ct. 135, 67 L.Ed. 287 (1922).
And the Court recently concluded that the Government's burdening of
property for a distinct period, short of a permanent taking, may
nevertheless mandate compensation.
See First English Evangelical Lutheran Church, supra, 482 U.S., at
318-319, 107 S.Ct., at 2387- 2388.
Of course, a party may gain the benefit of these principles only
after establishing possession of a property interest
25 that has been burdened. As today's decision indicates, petitioners
and persons similarly situated will have ample opportunity to make that
With this understanding, and for the reasons set forth in the
Court's opinion, I agree that the judgment below should be affirmed.